Last week, we talked about seven ways it’s illegal to be fired in an at-will employment state like Kentucky. For the most part, you can be fired for any reason the employer feels like. Maybe she doesn’t like your car, or you were falsely accused of stealing and later proved innocent. But you cannot be fired or not hired on the basis of “The Big Seven:” race, age, gender, nation of origin, disability, religion, or pregnancy.
In addition to those seven, there are five other ways it’s illegal to be fired in Kentucky.
This is usually a separate legal claim in part of an employment law case. If an employee makes a complaint about discrimination or violation on any of The Big Seven, that complaint gives them legal protection from retaliation. This means if they file a complaint with a government agency like the Equal Employment Opportunity Commission, they have protection from retaliation. If later that company fires the employee in retaliation for making the complaint, that will give them a separate cause of action or a separate legal claim.
I had a case that is now going to the Supreme Court that involved retaliation. My client was a track coach at a university. She went to her HR department and filed a gender discrimination complaint against the athletic department, claiming the department treated male coaches better than female coaches. Three weeks later she was fired. We took the case to a jury with two legal claims:
- She was subjected to harassment based on gender, which was a hostile work environment claim.
- She was fired in retaliation for making that complaint.
In the end, the first claim was not awarded, but she won the second one because the jury found that she was indeed fired in retaliation for making her complaint.
2. Whistleblower Statute
The Kentucky Whistleblower statute, also known as KRS 61, states that it is illegal to fire an employee who makes a complaint to a government agency for wrongdoing or illegal activity. There is a limitation on this statute in that it only applies to government employers, state employers, or employers that receive federal or state government funding. This means contractors to the federal or state government are covered by this statute, but a company that doesn’t do business with the government is exempt.
3. Worker’s Comp Claim
An employer cannot fire an employee because they got hurt on the job and filed a worker’s comp claim. Companies don’t like worker’s comp because it increases their insurance premiums, and some have eliminated an employee to keep those costs down. If an employee files a claim and the company fires them as a result, this is considered retaliation and is, therefore, illegal.
4. Wage and Hour Complaint
It is illegal to fire an employee who makes a claim that they are not getting paid properly. This could be lack of vacation pay, failure to pay bonuses, or improper pay. This would be a retaliatory discharge and also illegal.
5. Failure to Accommodate an Employee’s Disability
A disability is defined as substantially limited in their ability to perform one or more of the major life activities, but otherwise able to do the job. If a person with a disability makes a request for accommodation, the employer has to make a reasonable effort to meet it. This may include modified job duties, a hearing aid, or a wheelchair. If they refuse, that’s considered failure to accommodate. If the employer agrees to the accommodation, but refuses to pay for it, that could also be considered failure to accommodate.
There are several reasons as to why a firing can be illegal in an at-will employment state like Kentucky. They’re not very common, but they do come up many times throughout the state. If you think you’ve been illegally fired from a job, or not hired, because of The Big Seven, or any of these reasons, contact an employment law attorney to see if you have a case.
Photo credit: Leo Reynolds (Flickr, Creative Commons)